Rice on Select Committee of the Marriage Amendment March 2017

Being part of the Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill has been satisfying, rewarding and demanding. And it has been a refreshing experience to be part of a committee that has worked collaboratively and has been determined to reach a consensus position, and I really do want to commend my fellow senators on the committee who were so open to working together, particularly the chair, Senator Fawcett.

The committee heard from people from across the political spectrum on their views about marriage. We became highly informed about the differing views towards marriage equality and how they could potentially be accommodated. Marriage equality is an issue that has become politicised and polarised in Australian society. Despite this, polls consistently show that around two-thirds of Australians want to see the definition of marriage broadened to enable two people who love each other and want to make a permanent commitment to each other to marry, regardless of their sex, sexual orientation or gender identity.

The Greens recognise that despite this majority there are deeply held, primarily religious, concerns amongst other Australians, who sincerely believe that marriage can take place only between a man and a woman. In essence, the work of our committee was to explore whether we could bridge that gap between those who see marriage as a matter of equal rights for all and the portion of the community who have that firm religious belief. And I think we did. We have reached a consensus view, which is outlined in this report, that shows that we can protect religious freedoms and finally legislate for marriage equality.

I want to outline the areas I think are most significant where the committee has made some important consensus recommendations. The first is concerning the use of inclusive language. The committee supported the use of ‘two people’ or ‘two adults’ as the appropriate definition to broaden access to marriage for all Australian adults regardless of sex, sexuality or gender identity. We recommended that any future legislation to amend the Marriage Act should simply be titled the ‘Marriage Amendment Bill’.

We found that there is broad agreement for ministers of religion to have a right to refuse to solemnise a marriage that is not in accordance with their religion, and the Greens believe that the committee’s findings lead to a very clear position that the proposed section 47 of the exposure draft in fact reduces the religious freedom for ministers of religion compared with the existing section 47 of the Marriage Act, which allows ministers the broadest grounds to refuse to solemnise a marriage.

We found that the proposed section 47A of the exposure draft—that marriage celebrants should be able to discriminate against same-sex couples—would continue to single out and allow discrimination against LGBTIQ people by any celebrant. Importantly, the committee has proposed that, instead of allowing blanket discrimination, a better way forward is to create a class of independent religious celebrants so that those celebrants who wish to refuse to solemnise same-sex marriages on religious grounds would be able to do so. This would then enable a clear distinction between those celebrants with religious beliefs and civil celebrants who conduct secular marriages on behalf of the state and who would not be able to discriminate. The Greens fully support and endorse these proposals.

A key issue addressed by the committee was the proposed new section 47B of the exposure draft that stated that a ‘religious body or a religious organisation’ should have the right to refuse to provide facilities, goods or services for or ‘reasonably incidental to’ same-sex marriages. Regardless of the views as to whether this was appropriate or not, the committee recognised that section 37 of the Sex Discrimination Act already provides an exemption for religious bodies and organisations. As such, further exemptions are not needed.

The committee thoroughly considered the international human rights context of the issue of equal marriage. We found that there have been no international human rights decisions that oblige Australia to legislate for same sex marriage, but also, and perhaps more significantly, that there are no legal impediments to doing so. It is notable that the only UN Human Rights Committee considerations and findings on equal marriage, Joslin v New Zealand, was in 1999 and, despite finding that New Zealand was under no legal obligation to legislate for equal marriage, nonetheless New Zealand did so in 2013—just the other side of the ditch, and so similar to us—so, come on Australia! The Greens believe that Australia should reflect the views of the majority of the Australian population and act to end discrimination of LGBTIQ Australians and legislate for marriage equality as over 20 other nations have done.

The committee spent a lot of effort considering how to best balance the rights of non-discrimination for lesbian, gay, bisexual, transgender, intersex and queer Australians and the protection of religious freedoms. We did not come to a definitive position on whether there were any grounds for discrimination on religious grounds by commercial providers of goods and services—for example, florists, photographers and wedding-cake bakers. What the committee did find, however, was that these issues went beyond marriage and intersected with our anti-discrimination laws. The Greens believe that any further consideration of the balance between religious beliefs and the right to not be discriminated against should be addressed in the context of our broader anti-discrimination laws, not through the Marriage Act. We further believe very strongly that our existing anti-discrimination laws are already sufficiently robust so that legislating for marriage equality can happen now and it does not need to wait for any review or reconsideration of these laws.

We also know that there are massively greater numbers of florists, photographers and bakers who would be thrilled by legislation for equal marriage rather than being challenged by it. That said, we are supportive of reviewing our anti-discrimination laws to consider strengthening current protections for religious freedom.

The proposal to be able to discriminate on conscientious grounds was probably the most controversial aspect of the exposure draft. We noted that conscientious belief to allow discrimination against a class of persons would be unprecedented under Australian law. It is worth quoting the committee view that:

… the Committee would be disinclined to disturb decades of anti-discrimination law and practice in Australia.

I particularly noted the Australian Human Rights Centre’s view that:

The idea that a personal moral view could be used to treat someone unfairly because of a particular attribute strikes at the very heart of the rationale for our discrimination laws to begin with, which is all about ensuring equal treatment regardless of particular personal attributes. Introducing a justification for discrimination on the basis of a personal moral view is giving a blank cheque to discriminate.

We believe the evidence presented to the committee strongly supports a position to reject the inclusion of ‘conscientious belief’ in any legislation for marriage equality.

In conclusion, this process has given me hope. By working together, we have shown a path towards ending the discrimination. When I first spoke in the Senate, I looked at my partner Penny and said: ‘We are proud of our status as a same sex couple who have been legally married in Australia, and I am resolute that all couples should be able to share this right. The time for marriage equality in Australia has come.’ I think of all the lesbian, gay, bisexual, transgender, intersex and queer people I have talked to since that moment—of the people who have found love and who will find love soon enough. To them I say: have hope. You will be able to show your love before the law. It might be overdue, but it is coming.

Today we have taken the next step towards equality. We have shown that the parliament can work together and that we can do this. Now it is time for us to do our job and have a free vote right here in the parliament. By continuing to work together, we can catch up with the rest of the world on equal marriage and show that love is love.